UK deportations: Why timing is important

By Vitalis Madanhi

ukboarderA NUMBER of people are often seeking legal help when removal from the United Kingdom is imminent. This happens when the UKBA is all out to enforce removal of a person who might have been in the UK for a number of years but nonetheless without making any concerted efforts to regularise their stay.

When a loved one gets detained for removal, this tends to put pressure on friends and family to ensure that they do all they can to help. It is at that stage that true friends and family ties are tested.

In my view, rather than run around at the eleventh hour, it is much better to encourage colleagues and family to seek legal help on time before anyone gets detained for removal. By so doing, the person whose status is to be regularised would also have the chance to participate effectively in the case whilst still with them rather than at a time when one is behind bars for removal.

The situation is even tense these days with the pressure being exerted on solicitors by the courts with regards to last minute injunctions. In the case of Hamid v the Secretary State for the Home Department, the High Court issued a warning against any solicitor who pursues last ditch injunctions to stop removal in cases where any such applications have no merit.

The facts in that case could be summarised as follows: The case involved a person who overstayed his leave to remain in the UK. He came from Bangladesh and sought to remain in the UK after all his applications had been dealt with and refused. A last ditch application was made to try to rescue him from removal. That application was refused and the court issued a strong warning against representatives who seek to prevent the inevitable removal. The Administrative Court refused to defer removal.

In the light of the fact that there are many last minute applications being made, the court now demands a number of requirements to be met. These are solely designed to ensure that those people who want to leave it until it is too late to lodge an application would not find any favour with the courts.

Further, this certainly would put so much pressure on the solicitors to be instructed as they too risk the wrath of the courts in trying to salvage a case at such a belated stage.

The courts now require reasons for urgency be stated. Secondly, they require the timetable in which the matter should be heard. Thirdly, they ask for justification for immediate consideration to be given. In particular, courts require the date and time when it was first appreciated that an immediate application might be necessary and, if there have been any delays, the reasons are to be stated.

Many applications to prevent removal are filed towards the end of the working day, often on the day of the flight or the evening before a morning flight. In many of these applications, the person concerned has known for some time, at least a matter of days, of his removal. Many of these cases are considered by the courts to be totally without merit. The court infers that in many cases applications are left to the last moment in the hope that it will result in a deferral of the removal.

The case of R (Madan) v Secretary of State for the Home Department [2007] EWCA Civ 770 is cited for the guidance there given by Buxton LJ reminding those applying for removal injunctions of the need for a prompt application at the earliest possible time, the need for full disclosure of previous applications and an explanation of how the current application differs from those and the need for full disclosure of any adverse matters or relevant authorities in an ex parte context.

The possibility is raised of professional misconduct occurring “if an application is made with the view to postponing the implementation of a previous decision where there are no proper grounds for so doing”.

In the case of Hamid under review, the court issued a warning to this effect that if any legal representative fails to provide the information required on the form and in particular explain the reasons for urgency, the time at which the need for immediate consideration was first appreciated and the efforts made to notify the defendant, the court will require the attendance in open court of the solicitor from the firm who was responsible, together with his senior partner. It will list not only the name of the case but the firm concerned.

The issue here is not merely the completion of the necessary forms, but to drastically curtail the powers and efforts of the diligent solicitor who at the last minute seeks to help an applicant who otherwise has always known of the need to regularise one’s status long back but failed to do anything besides to rush to court when the hour of reckoning comes. In any such circumstances a number of applicants shall realise that amid the warnings from the court against the representatives themselves, a number of them shall go without representation at the last minute when removal is imminent.

The President of the Queen’s Bench Division, Sir John Thomas, in the case of Hamid warned:

These late, meritless applications by people who face removal or deportation are an intolerable waste of public money, a great strain on the resources of this court and an abuse of a service this court offers. The court therefore intends to take the most vigorous action against any legal representatives who fail to comply with its rules. If people persist in failing to follow the procedural requirements, they must realise that this court will not hesitate to refer those concerned to the Solicitors Regulation Authority.

It is absolutely important for any one keen to regularise one’s stay to do so on time to avoid a situation whereby one would be keen to instruct solicitors at the last minute as the chances of getting help would be expensive and remote. It is better to act quickly before being detained for removal as reversal of the process is increasingly under scrutiny and difficult.

Vitalis Madanhi is the Principal solicitor of Bake and CO Solicitors, a firm specialising in Immigration and asylum law in Birmingham, UK. He can be contacted at vmadanhi@bakesolicitors.co.uk, Phone 01216165025, mobile 07947866649 www.bakesolicitors.co.uk

Disclaimer: This article only provides general information and guidance. It is not in any way intended to replace or substitute the advice of any solicitor or adviser. Each case depends on its facts. The writer will not accept any liability for any claims or inconvenience as a result of the use of this information

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